The value of pre-colonial conflict resolution methods in addressing sexual violations committed in internal conflict situations in Zimbabwe by Fungisai G.A. Gcumeni Submitted in fulfilment of the requirements for the degree Doctor of Laws with specialisation in Constitutional Law and Philosophy of Law in the Faculty of Law at the University of the Free State Prepared under the supervision of PROFESSOR KARIN VAN MARLE November 2022 i Declaration University of the Free State Faculty of Law I, Fungisai Gloria A Gcumeni (student number: 2019841606) hereby declare as follows: 1. I understand what plagiarism is and am aware of the University‟s policy in this regard. 2. I declare that this DOCTORAL THESIS is my original work. Where other people‟s work has been used (either from a printed source, Internet or any other source), this has been properly acknowledged and referenced accordingly. 3. I have not used work previously produced by another student or any other person to hand in as my own. 4. I have not allowed, and will not allow, anyone, to copy my work to pass it off as their own work. 13 November 2022 Fungisai G.A. Gcumeni ii Dedication I would like to dedicate this thesis to my immediate family Beatrice Maisva and Farai Maisva, who were my anchors through their undying support and encouragement during my studies. I write this thesis in honour of my late father Chaka Cuthbert Maisva, whose love for education and knowledge modelled my academic aspirations and would be proud of this achievement. iii Acknowledgements I would like to first extend my gratitude to my Heavenly Father the Creator of this universe for his sustenance, providence and wisdom during the past 3 years of writing this study. It has been an interesting journey with different feelings and emotions I am grateful to Him for making this project possible. My outmost gratitude is extended to my supervisor Professor Karin Van Marle for her invaluable patience and critical and analytical feedback. Her guidance and advice carried me through all the stages of undertaking this study. Professor Van Marle‟s knowledge of Ubuntu and constitutionalism in the present-day context of modern law guided and modelled this research. Her timeous contributions and critical insight broadened my spectrum on African law and philosophy influencing my thinking in a new and enlightened positive manner. To that, I am forever grateful and pray for continued blessings of strength, vigour and wisdom upon her to enable her to extend her undying support and encouragement to those who come under her capable hands after me. I extend further gratitude to my husband Ernest Gcumeni and cousins Tendai Bhunu, Rumbidzai Mhishi and my family as a whole for their understanding, encouragement and patience when undertaking this study. To my friends and colleagues, I am grateful for cheering me on from the sideline and pushing me to complete what I had started. Your undying support and prayers sustained me this far. You all possess a special place in my heart and I am grateful for your presence in my life. iv Abstract The study considers the development of jurisprudence in conflict resolution with reference to pre-colonial African law in addressing sexual violence against women. The motivation for this investigation stems from the inadequacies of the present legal system in Zimbabwe to redress sexual violations perpetrated against women in the internal ongoing political conflict. The aim of the study is to garner insights from African traditional justice mechanisms in conflict resolution in determining their value in addressing sexual violations against women in Zimbabwe. This investigation of present- day Zimbabwe as a product of colonialism and imperialistic tradition explores its contribution to the loss of African values that shape the current approaches in addressing sexual violence. The socio-political, economic and cultural landscape of Zimbabwe post-independence mimics the political ontology under colonialism. The adopted governing principle of constitutionalism and its post-conflict justice initiatives adopted at independence until the present perpetuate coloniality. The existing conflict in the coexistence structure of Western and pre-colonial African law in conflict resolution is a foregoing challenge in the present legal system in Zimbabwe that prompts new thoughts in post-independent Zimbabwe. The aim of the study is to propagate the re-imagination of the present law and approaches to sexual violations against women from Zimbabwe‟s political conflict that disrupts post-colonial Zimbabwe. The present study invokes the task of recalling the pre-colonial African philosophy of Ubuntu in conflict resolution in the re-imagination of an alternative jurisprudence. The task of re-envisioning jurisprudence in the resolution of conflict-related sexual violence offers a liberating viewpoint that counters the Western domination and marginalisation of African indigenous knowledge in post-conflict justice initiatives in Zimbabwe. The study investigates the pre-colonial African philosophy of law and justice interpretation in conflict resolution to analyse and evaluate the challenges of the present conflicting existence of the two legal systems and the challenge this poses in addressing conflict-related sexual violence in Zimbabwe. The study explores the possibilities of integrating Western and pre-colonial African v philosophy and systems in conflict resolution on sexual violence arising in internal conflict situations. To that end, the study proposes an integrating approach in resolving conflict-related sexual violations that assumes Ubuntu epistemology as the jurisprudence that might bridge the jurisprudential challenges and gaps in the lack of approaches on sexual violations against women in Zimbabwe. vi Table of Contents Declaration ...................................................................................................................... i Dedication ...................................................................................................................... ii Acknowledgements ...................................................................................................... iii Abstract ......................................................................................................................... iv Table of Contents ......................................................................................................... vi Acronyms and Abbreviations ...................................................................................... x CHAPTER 1 Introduction ................................................................................................................... 1 1.1 Research problem .................................................................................................. 1 1.2 Research questions ................................................................................................ 2 1.3 Motivation ............................................................................................................... 3 1.4 Historical context .................................................................................................... 8 1.4.1 Pre-colonial Zimbabwe plateau .................................................................... 8 1.4.2 Zimbabwe‟s liberation war .......................................................................... 14 1.4.3 Lancaster House Constitutional negotiations ............................................. 18 1.4.4 Post-independence violence and impunity ................................................. 20 1.4.5 Post-2000 economic crisis and election violence ....................................... 21 1.5 Method and theoretical approach ......................................................................... 28 1.6 Structure ............................................................................................................... 32 CHAPTER 2 African concept of law ................................................................................................ 34 2.1 Introduction ........................................................................................................... 34 2.2 Myths and ideologies ............................................................................................ 35 2.3 Pre-colonial African customs as law ..................................................................... 38 2.3.1 When does custom become law? .............................................................. 38 2.3.2 Restorative justice ...................................................................................... 41 2.3.3 African customary law ................................................................................ 42 2.4 Founding principle of African law .......................................................................... 43 2.4.1 Nature of pre-colonial African societies and Ubuntu .................................. 44 2.4.2 Ubuntu in conflict resolution ....................................................................... 46 vii 2.4.3 Ubuntu and communitarianism ................................................................... 48 2.4.4 Ubuntu and sexual violence resolution ....................................................... 52 2.4.5 Ubuntu's concept of law and justice ........................................................... 57 2.5 Ubuntu law ............................................................................................................ 58 2.6 Western conceptualisation of law and justice in conflict resolution ....................... 65 2.6.1 Western concept of law .............................................................................. 68 2.6.2 Modern Western law features .................................................................... 70 2.6.3 Individualism in Western philosophy .......................................................... 73 2.6.4 Modern Western law‟s concept of justice ................................................... 75 2.6.5 Western administration of justice ............................................................... 78 2.6.6 Language and law in African and Western legal thought ........................... 83 2.7 Ubuntu and justice ................................................................................................ 88 2.7.1 Concept of justice in pre-colonial African legal systems ............................. 88 2.8 Linking Ubuntu law and sexual violence ............................................................... 96 2.8.1 Effects of sexual violence and conflict on women ...................................... 97 2.8.2 Challenges of Western-based conflict resolution methods on sexual violence ...................................................................................................... 98 2.9 Ubuntu law for redress of conflict-related sexual violence .................................. 102 2.9.1 Reconfiliation as a value for sexual violence ............................................ 109 2.10 Conclusion .......................................................................................................... 112 CHAPTER 3 Pre-colonial responses to sexual violence ............................................................. 117 3.1 Introduction ......................................................................................................... 117 3.2 Pre-colonial African legal systems ...................................................................... 118 3.2.1 Pre-colonial Africa‟s social, economic, political and justice structures ..... 120 3.2.2 Pre-colonial legal system socio-economic context ................................... 120 3.2.3 Pre-colonial justice administration ............................................................ 123 3.3 Pre-colonial Zimbabwe‟s legal systems‟ structure and operation ........................ 127 3.3.1 Traditional court system – Dare/Indaba .................................................... 127 3.4 Colonialism and its effects on Zimbabwe‟s pre-colonial African legal structures ............................................................................................................ 132 3.5 Conflict resolution and punishment in pre-colonial African legal systems on sexual violence ................................................................................................... 135 viii 3.6 The influence of colonialism on pre-colonial African legal systems in redressing sexual violence .................................................................................. 140 3.7 Evaluation of the analysis of three case studies on rape and sexual violence .... 147 3.8 The implication of colonial interference on pre-colonial legal systems and sexual violence ................................................................................................... 151 3.9 Colonialism and violence against women ........................................................... 154 3.10 Conclusion .......................................................................................................... 168 CHAPTER 4 Post-independent responses to sexual violence ................................................... 173 4.1 Introduction ......................................................................................................... 173 4.2 Political environment of post-colonial Zimbabwe ................................................ 174 4.2.1 Post-independent Zimbabwe‟s political culture ........................................ 177 4.2.2 Observations on the current political environment of post-independent Zimbabwe ................................................................................................. 182 4.3 Sexual violence in Zimbabwe – women and political violence ............................ 185 4.3.1 Sexual violence and women in Zimbabwe‟s political conflict .................... 185 4.4 Current approaches to politically motivated violence against women in post- independent Zimbabwe....................................................................................... 191 4.4.1 Overview of Zimbabwe‟s sexual offences legal framework – The Constitution .............................................................................................. 192 4.4.2 Constitutional provisions on the rights of women in Zimbabwe ................ 196 4.4.3 Constitutional provisions and legislation on sexual violence .................... 199 4.4.4 The role of the judiciary ............................................................................ 202 4.4.5 Political agreements, amnesties and clemency orders............................. 206 4.4.6 Approaches adopted by civil society organisations and non- government organisations on politically motivated violence in Zimbabwe ................................................................................................. 209 4.5 National peacebuilding mechanism in Zimbabwe on political conflict ................. 213 4.5.1 Organ for National Healing, Reconciliation and Integration ...................... 214 4.5.2 National Peace and Reconciliation Commission ...................................... 218 4.5.3 National Peace and Reconciliation Commission Act of 2018 ................... 219 4.6 Evaluation of the National Peace and Reconciliation Commission legal framework ........................................................................................................... 220 4.6.1 Challenges of the National Peace and Reconciliation Commission ......... 223 4.7 Conclusion .......................................................................................................... 226 ix CHAPTER 5 Possibilities for integration ...................................................................................... 231 5.1 Introduction ......................................................................................................... 231 5.2 Liberal constitutionalism and its challenges to African indigenous knowledge systems ............................................................................................................... 235 5.3 Liberative conceptual ideas in the quest for reconfiguration ............................... 242 5.3.1 Decoloniality as a concept for reconfiguration of legal pluralism coloniality ................................................................................................. 243 5.3.2 Africanisation, African Renaissance and African indigenous knowledge in conflict resolution .................................................................................. 248 5.4 An integrated approach to legal pluralism ........................................................... 258 5.4.1 The future vision through decolonisation and African Renaissance conceptual framework .............................................................................. 262 5.5 Lessons learnt from the African continent ........................................................... 265 5.5.1 A new lens for integration and non-legal pluralism ................................... 270 5.6 Conclusion .......................................................................................................... 276 CHAPTER 6 Conclusion ................................................................................................................. 280 6.1 Political history of Zimbabwe .............................................................................. 280 6.2 Differences in Western and pre-colonial African legal concepts of law and justice .................................................................................................................. 280 6.3 Effect of colonialism on pre-colonial African legal systems in redressing conflict-related sexual violence ........................................................................... 282 6.4 Zimbabwe‟s post-independence – current approaches to conflict-related sexual violence ................................................................................................... 284 6.5 The possibility of integration of the two legal systems ........................................ 286 Bibliography .............................................................................................................. 288 x Acronyms and Abbreviations CCJPZ Catholic Commission of Justice and Peace in Zimbabwe DRC Democratic Republic of Congo GPA Global Political Agreement ICC International Criminal Court LRA Lord‟s Resistance Army MDC Movement for Democratic Change MDC-T Movement for Democratic Change – Tsvangirai NCA National Constitutional Assembly NGO Non-government organisation NPRC National Peace and Reconciliation Commission ONHRI Organ of National Healing, Reconciliation and Integration SADC Southern African Development Community UNESCO United Nations Educational, Scientific and Cultural Organization ZANLA Zimbabwe African National Liberation Army ZANU Zimbabwe African National Union ZANU PF Zimbabwe African National Union Patriotic Front ZAPU Zimbabwe African Peoples Union ZEC Zimbabwe Electoral Commission ZIPRA Zimbabwe People‟s Revolutionary Army ZNA Zimbabwe National Army ZRP Zimbabwe Republic Police 1 CHAPTER 1 Introduction 1.1 Research problem Zimbabwe‟s political history over the past two decades has been marred by internal conflict as a result of political unrest.1 Incidences of violence increase during periods of elections and have been characterised by human rights violations including sexual violence.2 Politically motivated rape and sexual violence crimes have been standard features in Zimbabwe‟s political history dating back to the liberation war of independence.3 The aim of this doctoral study is to investigate the pre-colonial African conflict resolution mechanisms in addressing sexual violence crimes arising from the conflict. This investigation is prompted by the growing problem of violence against women and the failure of the delivery of justice to victims of sexual violence by the inherited Western legal systems that operate in Africa today. The changes to the pre-colonial African legal system of Zimbabwe were augmented in 1891 when the British High Commissioner‟s proclamation on 10 June declared the law applicable in the territory of Southern Rhodesia as Roman-Dutch and English common law.4 These Western systems of law since the proclamation became an indispensable part of the Zimbabwean legal system.5 Further changes occurred in 1923 to the legal landscape of Southern Rhodesia that entrenched colonial laws and systems in Zimbabwe as a British colony. These significant enactments had permanent effects on how pre-colonial African legal systems continue to operate in matters of conflict in present-day Zimbabwe. Furthermore, these inherited formal legal systems operating in most African states cannot be the only ideal 1 Reeler 2009:3–4. 2 Research and Advocacy Unit 2011a or b:9. 3 As the abuses are perpetrated in the name of the ruling party Zimbabwe African National Union-Patriotic Front (ZANU PF), there is no political will to prosecute leaving the survivors with nowhere to turn to. Non-government organisations (NGOs) have spent the better part of the last twenty years fighting to end impunity for these human rights abuses. Amnesty International 2002:4. 4 Madhuku 2010:19–20. 5 Madhuku 2010:19–20. 2 and functional mode of ensuring justice for victims of sexual violence and survivors of gross human rights violations committed on a large scale. These inherited legal systems are failing to adequately provide justice for victims and survivors of crimes of a sexual nature. As a result of this, there has been a growing movement in the African feminist and the African philosophical world for the adoption of African knowledge and the unearthing of African systems that were marginalised by colonialism to provide African solutions to African issues.6 This thinking calls for the investigation of authentic African local knowledge in all spheres of the African way of life including justice.7 This study investigates Zimbabwe‟s political history, its indigenous cultural practices in conflict resolution and those of other African countries that have undergone similar experiences. This is useful in discovering their adopted approaches in addressing conflict-related sexual violence crimes. Finally, this study probes the question, of whether integration of formal western legal systems with African pre-colonial modes of conflict resolution could provide justice, harmony and long-lasting solutions that are tangible, well-understood and appeal to the demands of sexual violence victims. 1.2 Research questions I address the following research questions to respond to the research problem as formulated above: 1) What are the main differences between Western and pre-colonial African concepts of law and justice? 2) What were the pre-colonial modes of conflict resolution practised in African societies and Zimbabwe in particular, that addressed sexual violence crimes as a result of internal conflict? 3) How were these pre-colonial resolution methods affected by the colonial administration and by the government of Zimbabwe post-independence? 6 Tamale 2020:10; Wiredu 2004:14–15. 7 Tamale 2020:20–21. 3 4) What is the current approach in Zimbabwe to redressing conflict-related sexual violence? 5) Is there a possibility of integrating pre-colonial modes of conflict resolution and the existing western legal systems in providing African justice for conflict-related sexual crimes? 1.3 Motivation The present study is evoked by the central problem of the lack of serious theoretical engagement in African legal philosophy in matters related to conflict resolution. The main challenge of the study is the limited sources on precolonial African dispute resolution methods on conflict and sexual violence. More so the study seeks to investigate conflict-related sexual violence considering the failures of Zimbabwe‟s government in addressing sexual violence that normally results in its political fraternity. The worldwide social domination of western groups in formerly colonised nations was translated into the legal fraternity of such nations including Zimbabwe. The social dominance of white ideological methodology referred to as “white logic and white methods came to dictate and mould the canon of jurisprudence and legal theory.”8 The white ideological methodology represents its worldviews, perspectives and background of Western European culture.9 The effects of the colonial encounter translating into the domination, distortion and replacement of African legal philosophy in conflict resolution adversely affected how violations including those of a sexual nature are addressed. The implications of this account and specifically its perpetuation into the present and the effects of Western legal philosophical domination have left African legal philosophy under-theorised.10 It has been taken for granted as a settled or insignificant matter in conflict-related matters such as sexual violence. In this study I explore the extent to which colonial legacy influence the redress of sexual violence committed against women during times of 8 Modiri 2017:5. 9 Modiri 2017:5. 10 Mills 1998:98; Modiri 2010:4; Murungi 2004:519–521; Tamale 2020:7. 4 internal political conflict. I raise the question if the Zimbabwean Constitution as a Western style document is in tension with the communal orientation in African customary law. I investigate if a communal orientation of Ubuntu law and justice is more advantegous to women who have suffered sexual violence during internal political conflict. I explore also if the problems with constitutional redress to women as victims of sexual violence from internal political conflict can be attributed to the approaches of bodies such as the National Peace and Reconciliation Commission (NPRC). I investigate if the unearthing of African pre-colonial legal systems in conflict resolution may be a valuable avenue to address sexual violence crimes resulting from Africa‟s internal political conflicts. Examples are replete in Africa of nations ensued by conflict that reverted to their pre-colonial practices of conflict resolution in order to remedy the disharmony created by conflict either due to colonial independence and post- colonial internal conflicts. Rwanda is one such an example that in responding to the 1994 genocide internally opted to adopt its pre-colonial conflict resolution practice commonly known as the Gacaca process.11 The Gacaca process was applied to crimes perpetuated against women that were sexual in nature.12 Rwanda in dealing with sexual violence resulting from the 1994 genocide, rape and sexual violence prior to 2008 was handled by the Rwandan National Courts.13 Amendments in 2008 were made to incorporate Gacaca as a competent traditional court structure to try cases of sexual violence.14 More specifically the change to Gacaca law assigned competency to Gacaca to try most remaining category 1 crimes which in the majority were rape and sexual torture.15 During the initial stages of Gacaca court proceedings affected women and other community members including perpetrators could publicly raise cases of sexual violence at Gacaca hearings. Kaitesti notes that in 11 The gacaca court system was based on Rwanda‟s oldest conflict resolution model (traditional gacaca) and was meant to combine “local conflict resolution traditions with a modern punitive legal system.” Some of the core features of traditional gacaca were continued in modern gacaca. Republic of Rwanda, Gacaca Courts in Rwanda (Kigali: National Service of Gacaca Courts, 2012) 12 Kaitesi, Genocidal Gender and Sexual Violence, 64. 13 The amendment to the law in 2008 gave authority for Gacaca Courts to try matters related to rape and sexual violence. Republic of Rwanda National Courts No 13/ Article 1. 14 Republic of Rwanda Organic alw No 13/2008. 15 Initially, category 1 crimes were tried at Rwanda‟s national courts, until an amendment to the law in 2008 assigned competency to Gacaca courts to try the majority of the remaining category 1 cases, see Republic of Rwanda, Organic Law No. 13/2008, article 1. Rafferty 2018:100-101. 5 the early years of the Gacaca hearings a great deal was spoken about sexual torture.16 Many women testified and their cases were discussed publicly at the gacaca hearings.17 The Rwandan government in recognising the potential dangers on victims and survivors of the retraumatisation of Gacaca initiated significant changes to the law to better protect women‟s confidentiality and support during the process.18 As opposed to usually public Gacaca proceedings all trials that included charges of sexual violence were held in camera, security and trauma counselors accompanied the victim –survivors.19 The nature of the process was rooted in restorative traditional justice. Another important tool to foster reconciliation were special procedures for confessions, guilty pleas, repentance and apologies specified in Gacaca law. 20The Gacaca court system was based on Rwanda‟s oldest conflict resolution model (traditional Gacaca). The approach adopted in dealing with sexual violence resembled a combination of local traditional resolution traditions with a modern punitive legal system.21 The nature of the approach is an example of how legal integration for countries battling in restructuring legal pluralistic societies could construct their approaches in dealing with conflict related sexual violence. While Gacaca incorporated restorative elements aimed at promoting reconciliation scholars argue that the retributive elements of the court system far outweighed and may have hampered reconciliation a key tenet of the traditional Gacaca system.22 Uwigabye states that “restitution was not given the priority it needed to promote reconciliation”23 An important obstacle affecting the reconciliation process was the lack of compensation for personal injury of genocide generally the Gacaca had only limited provision in relation to reparations.24 The Gacaca court 16 Kaitetsi 2014: 210. 17 Kaitetsi 2014: 210. 18 Rafferty 2018:100. 19 Rafferty 2018:101. 20 Republic of Rwanda, Organic Law No. 40/2000, article 54. These procedures had been adopted and slightly amended from Republic of Rwanda, Organic Law No. 08/96, articles 4-9. For confessions to be considered by gacaca, defendants had to 1) give a detailed description of the confessed crime, 2) disclose any accomplices and 3) apologise for the offense(s) committed. Gacaca prescribed that apologies had to “be made publicly to the victims in case they … [were] still alive and to the Rwandan Society,” Republic of Rwanda, Organic Law No. 16/2004, article 54. Rafferty 2018:99. 21 Rafferty 2018:97. 22 Herrmann 2012: 96. Uwigabye 2013:276. 23 Uwigabye 2013: 276-277. Rafferty 2019:99. 24 These provisions mainly applied to lower level crimes and consisted of symbolic reparations and compensation for loss of property, including monetary compensation and unpaid labor. Waldorf 2009:17-18. 6 systems in relation to sexual violence did not enable reparations for victims and survivors which has often been critiqued by a number of audiences, including genocide survivors, scholars and aid organisations.25 Sexual violations victims were however sidelined so as to become strangers in the process just as they are in the current justice system. Delving on precolonial knowledge systems in seeking a plausible alternative to the knowledge gaps in the present jurisprudence entails recognition of precolonial Africa customs practices and way of life. A pertinent aspect that ought to be addressed in understanding the structure and operation of pre-colonial Africa‟s gender structure. This is important as the study is primarily concerned with the redress of sexual violations in precolonial Africa. Hence the standing of women in these societies would provide a broader understanding on the cultural and accepted practices with regard to women. In precolonial Zimbabwe women among the Shona were excluded from land ownership although they could and did invest in livestock, the proceeds of their own skilled labour in nonagricultural pursuits.26 Women were economically active in the agricultural sphere as well as production of crafts, control over grain stores.27 They however did not control means of production in agriculture and metallurgy but provided the labour required for these occupations. Cultural practice of roora / lobolo dowry was one of the major reasons for pre-colonial African women‟s lack of direct control on means of production.28 This translated to mean that the family product lay in the dowry which not only transferred rights in a woman's labour and reproductive capacity from her own family to that of her husband, but also protected her family for this loss.29 They possessed great knowledge of their indigenous knowledge systems that was passed from generation to generation.30 Though there were visible demarcations in the division of labour women were not on the receiving end but played a complementary role in precolonial Africa. Holleman comments that women as property owners in precolonial Africa experienced more difficulty than men in increasing their authority through property accumulation.31 25 Uwigabye 2013:277. Herrman :96-97 Rafferty 2018:99. 26 Cheater 1986: 66. 27 Cheater 1986: 66. 28 Cheater 1986:66. 29 Cheater 1986:66 30 Nyoni et al. 2020:292 31 Holleman 1952: 352. 7 For these reasons, it is possible to regard women in pre-colonial society as comprising an equivalent to the class of labour in industrial systems of production.32 This class similarity helps to explain other features of women's positions in the pre-colonial system. In at least some situations in pre-colonial Zimbabwe, which extended into colonial times women's roles were not only differentiated but included those of religious and political authority, notwithstanding their general exclusion from areas of secular decision-making reserved for men.33 Precolonial women in Zimbabwe were custodians of the spiritual world and without women no ritual for the appeasement of the dead was done.34 It is contended that precolonial women in Zimbabwe held complementary positions to men although patrilineal and patriarchal kinship structure predominated these societies.35 This patriarchial structure it is acknowledged has had devastating effects on women in Africa. Though there are debates on its origins, patriarchy is now an embedded culture in African societies with hazardous consequences on women‟s status, economic independence, subjection to violence and decision making. 36 The complications that women encounter from political conflict have common roots and can be traced back to the patriarchal values embedded within society.37 In such societies, women are deemed to be incapable of handling power, responsibility, and taking charge of affairs and incapable of making decisions that are binding to all. 38 Patriarchy over generations has portrayed women as less intelligent, incompetent than their male counterparts.39 This perception of women is reinforced through male dominated institutions and patriarchal societies which internalised the idea that women are inferior. This therefore creates in some instances in society tolerance and normalisations of violence against women where these patriarchal perceptions of women are deeply 32 Cheater 1986:71. 33 Cheater 1986:71. 34 Nyoni et al. 2020:292. 35 Nyoni et al. 2020:290. 36 I Know Politics 2014. The Patriachal Barrier to Woman in Politics. https://www.iknowpolitics.org/en/knowledge- library/opinion-pieces/patriachal-barriers-women-politics. Accessed 02/12/ 2020. 37 I Know Politics 2014. The Patriachal Barrier to Woman in Politics. https://www.iknowpolitics.org/en/knowledge- library/opinion-pieces/patriachal-barriers-women-politics. Accessed 02/12/ 2020. 38 I Know Politics 2014. The Patriachal Barrier to Woman in Politics. https://www.iknowpolitics.org/en/knowledge- library/opinion-pieces/patriachal-barriers-women-politics. Accessed 02/12/ 2020. 39 Report of the Special Rapporteur on Violence against Women its Causes and Consequences on Violence against Women in Politics. A/73/301. 6 August 2018. P 6. https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics https://www.iknowpolitics.org/en/knowledge-library/opinion-pieces/patriachal-barriers-women-politics 8 embedded. 40 Stereotypes such as connecting men with interaction in the public sphere and women with the private domestic sphere of the family are still present today.41 These have adversely impacted the status of women in society with the end result of mistreating women during conflict periods.42 In situations where conflict arises, victory of the enemy is identified by attacking the women belonging to that community. 43 To fully comprehend the current status of sexual violence and related violence resulting from conflict in Zimbabwe, I engage in an elaboration of the history of Zimbabwe to provide the background and context of the study on the history of violence focusing on sexual violence against women in times of political conflict. The cycles of violence that I discuss include the pre-colonial state encounters, the war of liberation against British white minority rule, the Gukurahundi genocide of the 1980s,44 the chaotic and violent land redistribution programme of 200045 and the large displacements associated with electoral violence in 2000, 2002, 2008 and 2019.46 These identified epochs of violence in Zimbabwe provide some understanding of the present-day state of affairs in the political, economic and social spheres. The political history of Zimbabwe from pre- colonial times provides a synopsis of the problem of violence. The synopsis reveals the consistent practice of failing to redress politically related sexual violations against women by the successive regimes that have governed Zimbabwe. 1.4 Historical context 1.4.1 Pre-colonial Zimbabwe plateau Prior to the arrival of Europeans, African societies were complex with their own political, economic and social systems.47 The societies were neither primitive backward nor static 40 Report of the Special Rapporteur on Violence against Women its Causes and Consequences on Violence against Women in Politics. A/73/301. 6 August 2018. P 6. 41 Report of the Special Rapporteur on Violence against Women its Causes and Consequences on Violence against Women in Politics. A/73/301. 6 August 2018. P 6. 42 Report of the Special Rapporteur on Violence against Women its Causes and Consequences on Violence against Women in Politics. A/73/301. 6 August 2018. P 6. 43 Brownmiller 1975:17. 44 Catholic Commission for Justice and Peace in Zimbabwe (CCJPZ) 1997:43–44. 45 Raftopolous 2009:211. 46 Tshuma 2019:15. 47 Dawson 2011:144. 9 as is commonly said of African nations.48 These societies were rather complicated and dynamic with institutions worth defending.49 The historical founding of Zimbabwe as a nation is described as marked by violence and unresolved conflicts.50 It is characterised by defeat overthrow and tyranny over many decades.51 The routine sequence of the political history of Zimbabwe has been plagued with cycles of progress and then longer and often intractable conflict.52 A number of states emerged and fell including the Mapungubwe Kingdom whose capital was Great Zimbabwe around the eleventh century.53 Around 1450–1760 the Mutapa Empire existed and it was followed by the rise of the Rozvi State around the seventeenth century.54 Under differing titles, violent clashes and numerous battles ensued between the Ndebele and the Shona from 1840 up to 1900.55 That violence precedes both the advent of the Ndebele and colonialism and is undisputable as evinced by the names of the kingdoms that existed on what Beach56 referred to as “the highland between the Zambezi and the Limpopo Rivers,” now Zimbabwe. Mutapa57 (1450–1902) and Rozvi58 (1690–1830) are just two such examples of the kingdoms which preceded modern-day Zimbabwe. The arrival of Mzilikazi in 1834 from the Zulu Kingdom conflict 59 and subsequently the pioneer column in 1890 only amplified rivalry in an already violent and aggressive setting.60 The Nguni composed of two major groups, the Ndebele and the Gaza Nguni led by Mzilikazi, arrived and settled permanently in the southwestern and 48 Dawson 2011:144. 49 Dawson 2011:144. 50 Tshuma 2019:14 51 Benyera 2014:159. 52 Benyera 2014:159–160. 53 Pikirayi 2013:26. 54 Pikirayi 2013:26 55 Beach 1986:634. 56 Beach 1994:7. 57 “Mutapa is comes from the Shona word kutapa, meaning to enslave. According to oral history the Portuguese traders converted the title to Munhumutapa, meaning the owner or Lord of the conquered land.” Benyera 2014:159. 58 “Rozvi comes from the Shona word kurozva, meaning a way of dispossessing someone in an absolute manner. The names depict the characters of the subsequent rulers who raided to obtain wealth and women, enslaving men for military purposes. “Rozvi as a name depicts a scenario in which once a group of people were raided they were left with no women, soldiers or livestock, which, according to Mudenge, were the cornerstone of pre-colonial wealth.” Mudenge 1974:25. 59 The leader of the Matabele, who were an offshoot of the Zulu Kingdom, which were at that time ruled by Shaka. He was former military commander, who broke away from the rulership of King Shaka in an attempt to start his own dominion. Mazarire 2010: 31–34. 60 Mazarire 2007:2. 10 southeastern parts of Zimbabwe.61 The relationship between the Shona, who were residing in the northern parts of the Zimbabwe plateau, and their new indigenous neighbours was not so cordial.62 There were intermittent raids and counter-raids that commonly took place amongst these groups. Mazarire states that “it is clear that the Nguni introduced a new system of “feudal parasitism” made possible by the threat of military force.”63 “Neither of these groups believed in conflict against their subjects, nor was it realistic given their numbers. The use of violence however became a useful means of adapting to the new way of life.”64 The historical epoch of colonialism in pre-colonial Zimbabwe was the catalyst event that significantly affected the political, social, cultural and economic way of life.65 The colonial encounter with pre-colonial Zimbabwe is dated 1888; Zimbabwe from that point on formally became a colonial state when the British South Africa Company led by Cecil John Rhodes obtained mining concession rights from King Lobengula, the leader of the Ndebele people who resided towards the southern parts of the country.66 This initiative to approach Lobengula was possible because Rhodes persuaded Britain to grant him a Royal Charter against protests by King Lobengula.67 The granting of the Royal Charter facilitated the white settler group known as the Pioneer Column protected by the British South Africa Police to journey north from South Africa raising the Union Jack at Fort Salisbury, now known as Harare the capital city of present-day Zimbabwe.68 A violent uprising by the Ndebele and Shona arose against the British South Africa Company in 1896 forming the basis of mass nationalism and future imaginings of an independent Zimbabwe.69 It is widely believed among scholars that the factors that contributed to the uprising by the local people were based on the view that the presence of white settlers had brought about the outbreak of natural disasters like rinderpest, 61 Mazarire 2009:2. 62 Muchemwa et al. 2013:147. 63 Mazarire 2009:31. 64 Mazarire 2009:31. 65 Ndlovu-Gatsheni 2009:43–44. 66 Ndlovu-Gatsheni 2009:43–44. 66 Ndlovu-Gatsheni 2009:46. 67 Ndlovu-Gatsheni 2009:46. 68 Beach 1980:1. 69 Ndlovu Gatsheni 2009:59. 11 drought locusts and settler brutalities including forced labour, rape, looting and early colonial imposition such as the 1894 hut tax.70 The nature of the political economy among the Ndebele and Shona as Mangani elaborates was such that there was a heavy reliance on land and cattle as primary commodities.71 Cattle were particularly important as they provided a link between communities and families through trading and the paying of dowry as a bride price.72 The subsequent arrival of the white settlers in large numbers escalated the theft of land and cattle and the imposition of hut tax among other things, causing the Ndebele and Shona to revolt.73 The establishment of colonial rule brought about new forms of struggles for the local indigenous groups and racism disparaged Africans to the borders of life in Rhodesia.74 The period was characterised by evictions of Africans from their fertile lands to accommodate the large influx of white immigrants who had failed to secure much of the gold that was in demand.75 In a bid to regain their lost land heritage the Africans fought back but were conquered in the First Chimurenga/Umvuleka. 76 This war of liberation took place between1896 to 1897 and it is estimated that 8 000 people were killed.77 The colonial government and its structures intended to consolidate power by politically and economically subjugating and dominating the majority of Africans.78 To consolidate its ill gotten economic and political privileges, the colonial state used violence and tyranny as its major weapons and pillars.79 Blake states that the large arrival of European immigrants in the new colonial state changed the sexual politics in the colony.80 The imbalance of having more white males than white females caused trouble as white men sought sexual satisfaction; forced and voluntary among indigenous populations.81 According to Ndlovu-Gatsheni, both Shona and Ndebele indigenous groups of 70 Ndlovu-Gatsheni 2009:49. 71 Dawson 2011:145. 72 Dawson 2011:145. 73 Dawson 2011:145. 74 It is the name given to Zimbabwe in 1895 by Cecil John Rhodes upon establishing the British South African Company in its territory in 1890. Kaarsholm 1990:160–161. 75 Muchemwa et al. 2013:147. 76 Ranger 1967:23. 77 Ranger 1967:23. 78 Frederikse 1990:126. 79 Frederikse 1990:126. 80 Blake 1977:119. 81 Blake 1977:119. 12 Zimbabwe complained about the harassment and rape of women by white police officers.82 It is recorded that Chief Makoni complained to the Anglican missionary Frank Edwards that white raiders were sexually abusing Shona women. 83 Furthermore, the patriarchal and male-dominated Rhodesian society was intolerable to any sexual relations between European women and African men.84 The obsession with protecting white women from being sexually attacked by black men became known as the black peril.85 This ideological thinking saw the enactment of laws that criminalised interracial sexual relations.86 In 1903 the Colonial Legislative Council approved measures that governed issues of sexual relations between black and white races. 87 In that regard, the Immorality and Suppression Ordinance Act made it a criminal offence for sexual relations between African men and white women. However, no penalty was legislated for sexual encounters between white males with African women.88 White women undertook efforts to fight this hypocrisy through the Rhodesian Women‟s League, but to no avail.89 Relations between white males with black African women were never criminalised therefore affairs between these two groups were common. 90 There have been analyses conducted on colonialism and its effects on gender in colonised lands.91 In trying to understand the ever-growing problem of sexual violence in conflict and its intensity during and post colonialism in Africa, South America and African Americans in the diaspora have attributed this pandemic to the colonial conquest.92 The colonial concept of race and the historic processes of segregation played a significant role in epistemic violence, and physical and structural violence in the un/gendering of subjects within and across diverse spatial and temporal domains.93 African sociologist and South American scholar, namely Oyewumi and Lugones respectively, have argued that “sexualisation accompanied, permeated and coloured 82 Ndlovu-Gatsheni 2009:62. 83 Ndlovu-Gatsheni 2009:62. 84 Ndlovu-Gatsheni 1995:16–22. 85 Ndlovu-Gatsheni 1995:16–22. 86 Blake 1997:158. 87 Ndlovu-Gatsheni 1995:10–15. 88 Ndlovu-Gatsheni 1995:10–15. 89 Ndlovu-Gatsheni 1995:16–22. 90 Ndlovu-Gatsheni 1995:16–22. 91 Oyewumi 1997:121. 92 Murungi 2004:521. 93 Isoke 2016:741. 13 the colonial project of racialising the so-called people of colonised nations,”94 Oyewumi expressed concern over “the dominance of Western thinking in African knowledge production and gender relations among Yoruba people in Nigeria.”95 Such a concern also applies to other colonised African nations. Research on this concern by Oyewumi established that the British colonial administration in Africa advanced the superiority of settlers over natives and at “the same time in one seamlessly interwoven bureaucratic system” created a superiority of men over women.96 Isoke, like Oyewumi, agrees that two fundamental processes and strategies were inherent in the European colonisation of Africa for the establishment of that system.97 The first and most thoroughly documented of this superiority status was achieved through the colonial processes of racialisation. A system defined as the “ongoing process of marking, categorising and reproducing human differences through the uneven distribution of life opportunities within specified geographic space-time continuums.”98 The second identified process was the entrenchment of the inferiorisation of females. These two processes, racialisation and the inferiorisation inherent in colonial ideology were inseparable and became entrenched in the colonial situation.99 The application of these processes on gender thereby culminated in the relegation of African women to the bottom-most rung of the colonial hierarchy.100 The categorisation of indigenous and native groups degraded colonised women and became crucial to the colonial sexual racial ordering in all spheres of African indigenous life.101 The subjection of women were effected into the newly established colonial public sphere.102 African scholars empathetically stated that while race and racism in “the Western colonisation process were integral in the systematic inferiorisation of the conquered and this paved the way for violence, conquest, slavery and subjugation as central elements 94 Lugones 2007; Oyewumi 1997:124–125. 95 Oyewumi 2002:1–1. 96 Oyĕwùmí 1997:121. 97 Isoke 2016:741. 98 Isoke 2016:741. 99 Oyĕwùmí 1997:152 100 Oyewumi 1997:153. 101 Oyewumi 1997:121, 153, 123. 102 Oyewumi 1997:121, 153, 123. 14 of European global expansion.”103 Segregation was achieved by the application of violence.104 African and South American authors support the notion that colonisation played a substantial role in the perpetration of sexual violence in indigenous communities through the undermining of their traditional values and protective practices against sexual violence.105 1.4.2 Zimbabwe’s liberation war The grand changes that were taking place to Zimbabwe‟s pre-colonial African structure in the political, economic, legal and social structures due to colonialism led to action being taken by both the colonial government and the Africans. Africans became disgruntled with how the Rhodesian Patriotic Front106 was supported by the European immigrants and exhibited signs of entrenching itself within their borders by establishing a legacy of placing elite survival above economic survival.107 The Europeans residing then in Rhodesia supported the Rhodesian Patriotic Front for the sole purpose of securing themselves against the idea of African majority rule which led to their declaration of independence from Britain.108 The 75 years of British colonial rule were disrupted by the white-minority Southern Rhodesian government led by Ian Smith which discarded the title “Southern” in 1964 and declared a Unilateral Declaration of Independence 109 from the United Kingdom on 11 November 1965.110 Events in Africa played a catalyst role in influencing the political changes in the country. The 1960s witnessed East and West African nations gaining independence from colonial rule.111 The ripple effect of this change created a new breed of radicalised African nationalists in southern African countries that were still under 103 Mbembe 2017:20–21. 104 Mbembe 2017:17–19. 105 Oyewumi 1997:121. 106 “In 1961, Ian Smith established the Rhodesian Front and attracted white-supremacist support. The campaign promises of independence from Britain with a white minority government, a surprise victory was won by his party in 1962.” Encyclopaedia Britannica n.d. 107 Chitiyo 2004:28. 108 Ellert 1989:3. 109 It was “a Statement adopted by the Cabinet of Rhodesia on 11 November 1965 proclaiming that Rhodesia, a British territory in southern Africa that had governed itself since 1923, now regarded itself as an independent sovereign state.” Sanger n.d. 110 Chiweshe 2016:14. 111 Muchemwa et al. 2013:147. 15 white colonial rule.112 In Zimbabwe, the African nationalist parties, the Zimbabwe African Peoples Union (ZAPU) and Zimbabwe African National Union (ZANU) decided to wage a war using military means in an outcry against the political arrogance of the Rhodesian Patriotic Front officials.113 In response to the settler government‟s total determination against any form of majority rule, as expressed in Ian Smith‟s Unilateral Declaration of Independence in 1965, the Zimbabwe African National Liberation Army (ZANLA) was formed.114 The Unilateral Declaration of Independence was envisioned to embed white rule in the probable future. Volunteers from all walks of life among the indigenous Zimbabweans were willing to join the armed struggle against the Smith regime to establish majority rule.115 The violence that was waged by the African nationalists was not only targeting the colonial state, but inter- and intra-clashes were so grave that at some point it threatened the revolution itself.116 According to Muzondidya, “this violence can be linked to the role that colonialism played in planting seeds for ethnic rivalry. Colonialism all over Africa set into motion the politicisation of African identities.”117 To rally moral and material support for waging the war, African nationalists used the issue of land as a strategy for recruiting young Africans to their cause.118 This support for their cause was not only achieved through persuasion, but the guerrillas also used both persuasion and coercion as strategies.119 As the majority of the Rhodesian population was based in rural areas, rural folks bore the brunt of the violence on two fronts.120 The Rhodesian Security Forces, the armed wing of the Rhodesian Police and the Army accused the civilians of supporting terrorists.121 On the other front, the guerrillas accused the very same rural folk of betraying them to the Rhodesian Security Forces and were labelled sellouts of the revolution.122 112 Muchemwa et al. 2013:147. 113 Sithole 1978:38. 114 Chung and Kaarsholm 2006:78. 115 Chung and Kaarsholm 2006:78. 116 Chung and Kaarsholm 2006:78. 117 Muzondidya et al. 2007:278. 118 Muzondidya et al. 2007:278. 119 Mamdani 2008:18–19. 120 Kriger 1992:23. 121 Kriger 1992:23. 122 Kriger 1992:23. 16 The war was brutal and the Rhodesian Army committed human rights violations123 within Rhodesia and neighbouring countries such as Zambia and Mozambique where the black national liberation movement base camps had been set up.124 Torture and other human rights violations125 during the liberation war of the 1970s were well documented by the Catholic Commission of Justice and Peace in Zimbabwe (CCJPZ), Amani Trust and Amnesty International.126 The human rights violations reports showed that the security forces of the Rhodesian government were responsible for the atrocities committed during the conflict. Research from other NGOs reported that the guerrilla movement was not exempt from such accusations.127 According to Dzimbanhete, guerrilla misconduct during the war of liberation included killing, harassment, beating civilians, improper relations with women, in-house fighting and holding pungwe (all-night political mobilisation meetings) at places which compromised the safety of civilians.128 Mtisi et al. note that a gender struggle also played itself out in the camps. There is increasing evidence that female guerrillas and ordinary women were sexually exploited during the struggle.129 Chung130 substantiates this by alluding that sexual assault was prevalent in the camps and women guerrilla fighters and refugees were at times exposed to considerable harassment and abuse by male commanders and were expected to provide services as “warm” blankets.131 This was prevalent in the camps despite warnings by highly regarded spirit mediums whose opinions played a significant role in spelling out the law 123 It is estimated that the guerrilla war “claimed 60 000 lives and displaced about 15 million people by 1979. Many were displaced from their homes into “protected villages”, others had been turned into refugees mostly in Zambia, Botswana, Mozambique and Zambia; 100 000 had been injured.” Bastick et al. 2007:67. 124 Huyse and Salter 2008:35. 125 “Rhodesian regime from 1972 went on a brutal counter insurgency campaign and psychological warfare to target African people, using methods such as torture, detention, collecting fines, burning villages, shooting of unarmed civilians, confiscating cattle and forcibly removing people to protected villages.” Statement by Sister Janine McLanglin at the Economic Sanctions against Rhodesia. 1979:8. 126 Statement by Mr Smart, Head of Africa Research for Amnesty International on Rhodesia in 1979 reported human rights violations by Rhodesian government. Policy such as detention without trial and torture reports were frequent and consistent over the years by police and special branch and security forces. Increased use of detention, death sentences imposed and executions took place despite grossly inadequate legal procedures. Amnesty International 1979; United States 1979. 127 Reeler 2009:3–4. 128 Dzimbanhete 2018:112–113. 129 Mtisi et al. 2009:160. 130 A Chinese immigrant who was born in Zimbabwe in the early 1940s, who joined the liberation war in the 1970s and became the Education Minister in Mugabe‟s government after independence. 131 Chung and Kaarsholm 2006:200. 17 and conduct of the guerrillas. 132 Mitsi et al. add that in Matabeleland in the southern part of Zimbabwe in Nkayi and Lupane rural communities, elderly men found the guerrillas a source of great concern because they occasionally entered into involuntary relationships with women.133 The young guerrilla fighters were reported by their leaders as especially difficult to control and were often chided by their leaders about their behaviour towards women.134 The young guerrillas were often told that the pursuit of women was not why they were there.135 These rules on sexual behaviour Chung states were generally obeyed by rank and file but were disregarded by many of the top leaders.136 Consensual and non-consensual sexual relations commonly occurred between the ZANLA, guerrilla fighters and rural teenage girls. 137 These girls were commonly referred to as vana chibwido and they worked and assisted the liberation fighters.138 Sexual services were demanded by senior commanders from some of the young women guerrillas who had joined the liberation struggle in their thousands.139 Some of the women chose to attach themselves as wives to the leaders and some bore children from these temporary unions. 140 The women who did not bear children were regarded as girlfriends. Loyalty was demanded of these women by the guerrilla leaders as expected of wives, but the leaders were free to have women in all the camps. 141 Most times these women did not enter these casual unions freely but were forced into them.142 In the communities, Dzimbanhete further states, it was not unusual for teenage girls to be involved in love affairs with the comrades.143 Sexual transgressions by the liberation fighters involved having consensual sex with either civilian married women or teenage girls.144 However, women were reluctant to speak about their experiences and 132 Chung and Kaarsholm 2006:200. 133 Mtisi et al. 2009:161. 134 Mtisi et al. 2009:161. 135 Mtisi et al. 2009:161. 136 Chung and Kaarsholm 2006:125. 137 Dzimbanhete 2015:53. 138 Dzimbanhete 2015:53. 139 Chung and Kaarsholm 2006:125. 140 Chung and Kaarsholm 2006:125. 141 Chung and Kaarsholm 2016:126. 142 Chung and Kaarsholm 2016:126. 143 Dzimbanhete 2015:53, 55. 144 Dzimbanhete 2015:53, 55. 18 what they witnessed taking place in the camps because of the fear of judgment and its bearing on their moral standing later in life.145 Recently a senior government official, the current Defence Minister, Oppah Muchinguri admitted to being a victim of politically motivated rape during the liberation war.146 She acknowledged that rape was and is used to weaken and punish women during war and other political conflicts, limiting female participation whether as candidates or voters.147 The long-protracted war, which reflected the defeat of the Rhodesian government by the African nationalists, finally ended with the Lancaster House Constitutional Talks brokered by the British government in 1979.148 1.4.3 Lancaster House Constitutional negotiations There was increasing international pressure to end the brutal war between the Rhodesian regime and the major liberation movement parties composed of ZANU PF and ZAPU.149 At that time, Ian Simth‟s regime had conceded some power to Bishop Abel Muzorewa who was a leader of a black civilian government.150 He had been elected by a non-racial election that the liberation movement did not recognise and participate in.151 The war, therefore, did not stop as a result of the non-recognition by the liberators of this nominal government. In 1979 a conference was held in Great Britain at Lancaster House and the leaders of the warring sides attended. Robert Mugabe and Joshua Nkomo represented the Patriotic Front, and a delegation from Muzorewa included Ndabaningi Sithole and Ian Smith.152 Negotiations were held and an agreement was signed; a constitution that would govern the new state was adopted which culminated in a ceasefire agreement.153 The Lancaster House Agreement paved way for a new Zimbabwe based on majority rule 145 Dzimbanhete 2015:53, 55. 146 https://www.pazimbabwe.com/politics-24991-video-oppah-muchinguri-reveals-raped.html 147 Bardall et al. 2018. 148 Muchemwa et al. 2013:148. 149 Mtisi et al. 2009:166. 150 Bloomfield et al. 2003:36. 151 Bloomfield et al. 2003:36. 152 Bloomfield et al. 2003:36. 153 Bloomfield et al. 2003:35. 19 and a golden opportunity for a new post-colonial Zimbabwe.154 It granted the white Zimbabweans significant white minority rights, and strict and detailed protection of commercial farmland.155 According to Raftopolous, this policy adopted for the new Zimbabwe, detailed the difficulty ahead of rebuilding the nation.156 The policy agreement set out to “dissipate the fears of the white minority and international community while consolidating ZANU PFs determination to control and extend the reach of the state to provide the resources for the improvement of the majority of the people.”157 The language of reconciliation was a “generous and inclusive invitation for old antagonists to join the emerging nation.”158 Kagoro states “that the final document produced from the talks was warped and reflected the compromise between the colonial power and the nationalists.”159 The colonial power seized the opportunity to protect the white farmers‟ economic interests.160 The nationalists accepted the agreement, understanding its structural defects in the hope of rectifying them in the near future when they would gain full political power.161 The General Amnesty Ordinance of 1980 pardoned all the warring parties of the conflict, and crimes committed by both the nationalist guerrillas and the Rhodesian forces went unpunished.162 The reconciliation extended by Mugabe exhibited a top-down, exclusivist and elitist posture, which left out the actual victims of the violence.163 Muzondidya alludes to the same and adds that “the reconciliation attempt was a superficial gesture164 as it focused on the white-black binary, “yet the monstrous and vigorous nature of the conflict required a holistic and all-encompassing approach.”165 Tekere stated that the only reason he was opposed to the reconciliation 154 Muchemwa et al. 2013:149. 155 The major high points of the Lancaster House Conference settlement were “that the minority white population was allowed to retain 20 of the 100 seats in Parliament for at least seven years.” Mtisi 2009:165. Chung and Kaarsholm 2006:246. 156 Raftopolous and Mlambo 2009:XII–XIII. 157 Raftopolous and Mlambo 2009:XII–XIII. 158 Raftopolous and Mlambo 2009:XII–XIII. 159 Kagoro 2004:236. 160 Section 16(1) set in place a ten year limitation on the future government‟s ability and power to acquire land compulsorily for state purposes and Section 52 placed a prohibition of 10 years on the amendment of the Declarations of Rights. The Lancaster House Constitution of Zimbabwe, 1979. 161 Kagoro 2004:236. 162 Bloomfield et al. 2003:37. 163 Bloomfield et al. 2003:37. 164 Kriger 2003:2. 165 Muzondidya 2004:213. 20 that Mugabe extended at independence was that it had never been discussed before.166 The general problem of lack of justice in post-colonial Zimbabwe was in the founding of the new state.167 The shaky foundation of independent Zimbabwe covered unsettled disputes and prejudices that were a century old; these were carried over into post- independent Zimbabwe.168 A culture of intolerance for political plurality, diversity and accountability for wrongs perpetuated against its citizens was set as a foundation for the new nation.169 This became evident shortly after independence when post-colonial conflicts started with the Intumbane uprisings that led to the Gukurahundi massacres from 1982–1986 and continued with the successive elections held in 2000, 2002, 2008 and 2018.170 1.4.4 Post-independence violence and impunity Though Zimbabwe was free to govern itself since its attainment of independence from white rule, violence was not absent in this new state.171 The armed wings ZANLA and ZIPRA of the two main political parties ZANU PF and ZAPU172 that brought liberation to Zimbabwe often competed for territory and support. They frequently fought and killed each other before independence and this suspicion of each other continued in the new state.173 This led to Gukurahundi174 massacres that took place in the southern part of the country, namely the Midlands and Matabeleland between 1982 and 1986. To silence opposition, Mugabe‟s regime conducted counter-insurgency operations against dissidents who had been ex-guerrillas in the war of liberation by unleashing the army in 166 Tekere 2007:55. 167 Muzondidya 2004:175. 168 Muzondidya 2004:175. 169 Muchemwa et al. 2013:149. 170 Muchemwa et al. 2013:149. 171 Nyathi 2004:63–64. 172 “In 1963, controversies led to a split within Joshua Nkomo‟s ZAPU, then the main movement and the rival group, ZANU that was set up by Ndabaningi Sithole. Robert Mugabe became its leader in 1966. Initially the split was not based on ethnic or regional differences or composition, but gradually it became significantly tribal in nature because ZANU and ZAPU campaigned and recruited in different areas – ZAPU mainly in Matabeleland, ZANU in the Shona- populated areas. The rift deepened into serious conflict between the armed wings of the two movements – the ZIPRA linked with ZAPU whilst the ZANLA was the armed wing of ZANU. ZIPRA and ZANLA differed in outlook, training and ideology.” Eppel 2004:44. 173 Nyathi 2004:64. 174 In the local Shona language, “it refers to the first rains that wash away chuff left from the previous seasons. In Matabeleland, civilians believed they were themselves the chuff or rubbish that had to be washed away as Mugabe had given this name to the Fifth Brigade who were responsible for most of the atrocities in the region, at their passing out parade in December 1982. “This became the name of the military operation in the Matabeleland and Midlands provinces.” Eppel 2004:59. 21 the region.175 During this conflict, thousands of civilians disappeared and were beaten, killed, raped and tortured. The Fifth Brigade Unit of the Zimbabwe National Army (ZNA) committed these violations.176 Crimes of a sexual nature were reported widely in Matabeleland during Gukurahundi massacres. Women and young girls were subjected to physical torture and rape.177 Women were also forced to become sexual slaves to members of the Fifth Brigade.178 Women were reportedly forced to climb trees, spread their legs and the Fifth Brigade soldiers would insult their genitals and simultaneously beat them.179 Sharp objects were inserted in their private parts and they were subjected to genital mutilation. This period was followed by an agreement to end the hostilities.180 This brought about unity and eventually led to the formation of a one-party state. All those responsible for the heinous crimes committed during the conflict were not held to account.181 The Chihambakwe Commission was set up to investigate the allegations of gross human rights violations but to date, the report was never published.182 The political period that followed this violence in the early 1980s was characterised by peace. However significant changes were taking place in the economic and social sectors of the country. 1.4.5 Post-2000 economic crisis and election violence By 1997, the Zimbabwean economy was exhibiting signs of failure.183 This situation was attributed to the government‟s economic policies and the introduction of the Economic Structural Adjustment Programme.184 Corruption was rampant within government structures and the people of Zimbabwe were dissatisfied with ZANU PF governance.185 Davies states that the early 1990s saw some growth in the economy of Zimbabwe and by 1996 there appeared to be a possibility that the Economic Structural Adjustment 175 CCJPZ 1997:69–70. 176 CCJPZ 1997:69–70. 177 CCJPZ 1997:69–70. 178 CCJPZ 1997:69–70. 179 In 1987 the Unity Accord signed by the ruling party ZANU PF and ZAPU led by Joshua Nkomo. Moyo 1991:83. 180 In 1987 the Unity Accord signed by the ruling party ZANU PF and ZAPU led by Joshua Nkomo. Moyo 1991:83. 181 CCJPZ and Legal Resources Foundation 1997:43. 182 CCJPZ and Legal Resources Foundation 1997:43. 183 Reeler 2009:4. 184 Reeler 2009:4. 185 Reeler 2009:4. 22 Programme was bearing fruit.186 In 1997 a reversal of the positive trend was evident in the economy, marking the start of the current economic and political crisis in Zimbabwe.187 The reversal in the positive economical trend is attributed to the government of Zimbabwe‟s involvement in the Democratic Republic of Congo (DRC), an initiative attempt by the Southern African Development Community (SADC) to stabilise the security situation.188 The engagement in the DRC offered some economic opportunities for the government of Zimbabwe as it encouraged entrepreneurs to penetrate the DRC market. The cost of involvement in the DRC drew negatively on the country‟s economic reserves and contributed to the failure of the structural adjustment programme.189 A result of the failing economic policy and decisions such as the payment of enormous unbudgeted payments to the now rebellious war veterans by President Robert Mugabe had a spiralling effect and affected the value of the Zimbabwe dollar, which led to its crash.190 This led to the 1998 food riots, which were sparked by the rising cost of living, inflation of basic goods and services, the decline in the standard of living for the majority and the devaluation of the local currency.191 The political situation and state of the economy continued to decline. In 1999 a new opposition party was formed called the Movement for Democratic Change (MDC) which was the strongest opposition to the ZANU PF post-independence.192 In 2000, general parliamentary elections were held and it was acknowledged that they were the most violent elections since 1980, but it was soon eclipsed by the 2002 presidential election.193 Overshadowed by land invasions and nationwide political violence, the ZANU PF maintained power with “a significantly 186 Davies 2004:32. 187 Davies 2004:32. 188 Raftopolous 2009:202. 189 Raftopolous 2009:203. 190 Reeler 2009:4. 191 The government of Zimbabwe responded to the riots by using brutal force against its citizens using the police and army. Reports revealed that beating, torture and arrests were indiscriminately used to anyone suspected of taking part in the riots. Zimbabwe Human Rights NGO Forum 1998:34-40. 192 Raftopolous and Savage 2004:204–205. 193 According to Reeler, “The 2002 election was more acrimonious and violent than the previous one and, because there was an expectation of widespread irregularities, monitoring of the process was far more diligent than in 2000. The 2002 election itself became mired in multiple controversies, especially relating to the many legal challenges and the changes to the laws and regulations governing the elections, which continued right up to the start of the poll.” Reeler 2009:6. 23 reduced majority and a forfeiture of its previous two-thirds majority in parliament since 1980.”194 Citizens of Zimbabwe were by this time demanding a new constitution. Land invasions of white-owned farms began when the draft constitution was rejected by the masses in the constitutional referendum of 2001.195 Human rights violations were reportedly orchestrated by government sponsored youth militias and war veterans in the takeover process of white-owned land.196 Violence and terror between the rival political parties reached their peak between 2000 and 2008 when “ZANU (PF) increasingly utilised state agencies, war veterans and militia during election campaigns.”197 Hundreds of opposition party activists and supporters, mainly from the Movement for Democratic Change –Tsvangirai (MDC-T), were killed in the 2000, 2002 and 2008 elections.198 Thousands were displaced, raped and subjected to all forms of sexual assault. The intensity and aggressiveness of the violence resulted in the discrediting of the 2008 run- off presidential elections.199 The volatile situation in the country brought international pressure on the Government of Zimbabwe. As a result of mediation by the former South African President, Thabo Mbeki and the SADC, the ruling ZANU PF party and the opposing MDC factions200 signed a Global Political Agreement (GPA) on 15 September 2008.201 The discontentment by the masses, the socio-political opposition and the intensified propsects of losing the 2008 general election, prompted ZANU PF to resort to sexual violence to maintain political control.202 The main victims of sexual violence were alleged MDC-T supporters.203 These violations were perpetrated by “youth gangs, war 194 Reeler 2009:6. 195 Kagoro 2004:154,144–145. 196 Reeler 2009:6. 197 Sachikonye 2011a:3. 198 Chiweshe 2016:16–17. 199 Chiweshe 2016:16–17. 200 The MDC led by Morgan Tsvangirai was formed in 1999. In 2005 it split into the MDC led by Tsvangirai and the MDC led by Arthur Mutambara. The reasons for the party splitting are believed to be infiltration by the government of Zimbabwe and failure to agree on whether MDC should participate in the 2005 Zimbabwe Senatorial Elections. https://en.wikiredia.com/wiki/Movement_for_Democratic_Change (prior_to_2005) Accessed 28 May 2021. 201 Machakanja 2016:2. 202 Hodzi 2012:2–3. 203 Hodzi 2012:2–3. 24 veterans, state security agents and supporters of the ZANU-PF.”204 The systematic rape that took place during the 2008 elections is generally believed to be a continuation of previous violence perpetrated against members of the opposition MDC in preceding election years.205 The majority of the perpetrators were party supporters and apparatus of Mugabe‟s government.206 According to AIDS-Free World, “the resort of state security agents to commit sexual violence against civilians suggests that it was a centrally organised campaign rather than spontaneous and random acts.”207 This pattern was repeated in almost all provinces of the country reinforcing suspicion that it was centrally organised.208 In the GPA of 2008 between the ZANU PF government and the opposing political parties, provision was made for the establishment of the Organ of National Healing, Reconciliation and Integration (ONHRI). Its mandate was to deal with the violence that had been a feature of politics in Zimbabwe. To date, no concrete measures have been taken to address sexual violence-related crimes that resulted from the political conflict.209 The displacement of Robert Mugabe‟s rule in Zimbabwe since independence in November 2017 seemed to have brought about a glimmer of light in the political realm. The new leadership in the ZANU PF that took over under the leadership of Emmerson Mnangagwa promised under a new dispensation, a new Zimbabwe which was open for business.210 The new dispensation quickly returned to its old tricks as can be seen in the 2018 general elections. On 20 July 2018 general elections were held in Zimbabwe and a delay in the announcement of the results brought about tension in the country. On 1 August 2018 youths in the city of Harare marched demanding the announcement of the election results.211 The supposedly “new dispensation” deployed hundreds of soldiers and anti-riot police across Harare.212 Soldiers on foot indiscriminately beat 204 Hodzi 2012:3. 205 Reeler 2009:31. 206 A Solidarity Peace Trust report revealed that “ZANU-PF youth committed 83 per cent of crimes while state agents- the Zimbabwe Republic Police (ZRP), the ZNA and members of the Central Intelligence Organization committed 18 per cent.” Reeler 2008:31; AIDS-Free World 2009:13, 10; Research and Advocacy Unit and Zimbabwe Association of Doctors for Human Rights 2010:2. 207 AIDS-Free World 2009:10, 17. 208 AIDS-Free World 2009:10, 17. 209 AIDS-Free World 2008:10–17. 210 Human Rights Watch 2019. 211 Human Rights Watch 2019; Zimbabwe Human Rights NGO Forum 2018:3-4. 212 Human Rights Watch 2019. 25 anyone in sight; later the police confirmed the shooting death of six people. 213 Other violations reported during the period 1–9 August 2018 included extra judicial killings, gunshot wounds, assaults, rape and sexual assault.214 These incidences of violence in August 2018 became evident of the fact that Mnangagwa‟s leadership branded as the “new dispensation” was no different from Robert Mugabe. In 2019, two years after Mnangagwa assumed power, a price hike in the cost of fuel by his regime sparked a two-day national stay-away.215 On the second day of the stay-away, reports emerged that members of the ZNA and the ZRP were ransacking homes in high-density areas, assaulting and arresting young men.216 Violence erupted in mostly high-density suburbs and rural areas as the military and ZANU PF activists pursued opposition activists.217 They accused the young men of participating in the stay-away and barricading roads prohibiting citizens from going to work.218 Reports revealed that during the raids conducted by the security agents in the homes, women were once again subjected to rape and sexual violence.219 The Zimbabwe Human Rights NGO Forum reported about seventeen cases of rape and other forms of violations of a sexual nature during this stay-away period. 220 In all rape cases, perpetrators were members of the army collaborating with the police. There were further reports of violations such as torture, abductions, displacements, assault and inhuman and degrading treatment.221 The use of sexual violence and rape in Zimbabwe during political contests has been reported dating back to pre-and post-independence. Since 2000, there has been a significant increase in the number of such incidence reports.222 The government of Zimbabwe‟s response to this crisis by sending the army to bring the situation under control is a significant trait that the government of Zimbabwe employs when dealing with dissent within the political realm. Muchemwa states that this response is reflective of three important things: First the use of violence as a tool 213 Zimbabwe Human Rights NGO Forum 2018:3–4. 214 Zimbabwe Human Rights NGO Forum 2018:3–4. 215 Zimbabwe Human Rights NGO Forum 2019: 3–4. 216 Zimbabwe Human Rights NGO Forum 2019: 3–4. 217 Zimbabwe Human Rights NGO Forum 2019: 3–4. 218 Zimbabwe Human Rights NGO Forum 2019: 3–4. 219 Zimbabwe Human Rights NGO Forum 2019:14. 220 Zimbabwe Human Rights NGO Forum 2019:14. 221 Zimbabwe Human Rights NGO Forum 2019:4–5. 222 Research and Advocacy Unit 2011a:9. 26 against the perceived enemies by the ZANU PF regime is a deeply rooted and entrenched colonial tactic to silence perceived enemies of the state.223 This observation is supported by Chung who states that “the culture and political polarity that leads to violating and killing of opposition members has its roots in the colonial settler heritage.”224 Second, it has become evident that the post-Zimbabwean state is characterised by a lack of tolerance for political diversity and dissent. The state of Zimbabwe in dealing with dissent relies heavily on force and a narrow interpretation of citizenship and national unity.225 Third, it has exposed the observations by earlier scholars that the reconciliation extended in 1980 was only applicable to the racial issue, as all other issues affecting the nation today were and continue to be regarded as insignificant to warrant any attention from the regime. Furthermore, the government of Zimbabwe harbours a culture of intolerance to criticism, polarity and plurality in the political arena.226 From the above political history of Zimbabwe, there is a general pattern that is exhibited by the Government of Zimbabwe when it relates to accountability for crimes committed against its citizens. The ZANU PF government responds to allegations of human rights violations by enacting amnesty laws that prohibit the investigation and prosecution of such violations.227 While the government has in recent times responded to this gap in accountability on conflict-related sexual violence crimes, it has asked women who have been victims of crimes of a sexual nature to report to the police. In the lead-up to the elections in July 2018, the Commissioner General of Police stated that his office is ready to investigate politically motived cases of sexual violence and that survivors should come forward, especially those from 2008.228 This should be the normal procedure but because the rapes and sexual violations have been committed by state agents, the victims are reluctant to report them. The reluctancy to report by victims 223 Muchemwa et al. 2013:150. 224 Chung and Kaarsholm 2006:165. 225 Muzondidya 2009:176. 226 Muchemwa et al. 2013:150. 227 Amnesty International 2000:6. 228 Commissioner General Matanga was speaking at the Women‟s Coalition of Zimbabwe launch of a project on violence against women in elections VAWIE in partnership with Zimbabwe Peace Project, Zimbabwe Women Lawyers Association with support from International Federation of Electoral Systems and the Canadian Embassy. This launch was in July 2018. 27 stems from the fact that perpetrators of such violations are part of the system where victims of sexual violence are supposed to seek the necessary support and redress.229 Reports by the victims of these violations have stated that soldiers who are cited as perpetrators threatened victims with death if they reported the rapes. In some instances, the perpetrators were reported to have bragged that they will not be held accountable even if the women dared to report.230 Post-election violence in August 2018 and January 2019 reinforced the fact that the government does not take politically motivated violence cases seriously.231 Security agents act in a manner that exhibits that they are accorded immunity for crimes committed against citizens during election periods. This has culminated in a situation where the nation has become polarised when it relates to political matters.232 Since the economic and political crisis began, Zimbabweans have split into two political parties, namely, ZANU PF and the MDC, with ZANU PF seen as the perpetrators of violence and the MDC as the victims.233 The political history of Zimbabwe reveals that there is an entrenched culture of impunity within state-sponsored militias234 and other state agencies such as the police, army, and the Central Intelligence Office. This culture of impunity extends to supporters of the ruling ZANU PF and the government has “thwarted the prosecution of perpetrators by controlling the police, undermining the independence of the judiciary,235 and using direct threats and the issuing of legislation to further their agenda.”236 It is evident that since independence, ZANU PF members are immune to prosecution and this stance has continued throughout its political history. Since the political crisis in Zimbabwe began and the subsequent formation of the country‟s first political opposition, the MDC, Zimbabwe has remained trapped in constant and perpetual cycles of conflict, violence, and disputed and inconclusive electoral results.237 The ZANU PF‟s ideology regards 229 Zimbabwe Human Rights NGO Forum 2019:20. 230 Zimbabwe Human Rights NGO Forum 2019:18. 231 Zimbabwe Human Rights Commission 2019:9. 232 Zimbabwe Human Rights NGO Forum 2019:20. 233 Zimbabwe Human Rights NGO Forum 2019:20. 234 Amnesty International states that, “as an underhanded arm of the state, these informal “militias” are comprised of supporters of the ruling ZANU-PF party, members of the Zimbabwe National Liberation War Veterans Association and unemployed rural youths, sometimes press-ganged into their activities.” Amnesty International 2002:2–3. 235 Goredema 2004:101–102. 236 Amnesty International 2002:6. 237 Tshuma 2019:16. 28 violence as a necessary element of addressing political and social differences. It will resort to violence to solve problems that threaten its power base. This has inadvertently left Zimbabwe today as a fractured and broken society.238 The persistent use of methods such as torture, harassment, threats, intimidation and sexual violence to silence dissenting voices has become familiar weapons of choice for the government of Zimbabwe. These forms of violence have been deployed by all the successive administrations in Zimbabwe pre- and post-colonialism to quell dissent and any form of opposition.239 The status quo will continue unless representatives of the past and present construct a different approach to the crisis that maps a path that is inclusive and tolerant. 1.5 Method and theoretical approach The imperative of this study is to research the possibility of adopting pre-colonial African legal systems in addressing conflict-related sexual violence in Zimbabwe. The general problem that has plagued Zimbabwe in times of conflict has been the targeting of women‟s bodies and the general failure to redress sexual violations that result from the conflict. This has been a common feature from the colonial era and is prevalent in post- colonial Zimbabwe. The theoretical approach of this research is guided by African philosophy and African feminist theories on the radical thinking and adoption of African philosophy in situations of conflict resolution on conflict-related sexual violence. The engagement with African philosophy is important as it advances the growth of theories ingrained in Africa. That has the prospect of working towards the unshackling of the African intellectual landscape from the dominant Western culture and philosophy. It is hoped that the ultimate result of reliance on African philosophy will motivate the decolonisation of African minds in dealing with conflict issues that plague its continent presently. The scepticism surrounding African philosophy and value systems sends a message that Africans need to revitalise their value systems. They need to discover their nature of being, their theory of knowledge and recuperate their lost dignity. As Mapaure notes, 238 Tshuma 2019:17. 239 Cameron 2018:42–43. 29 “the recognition of traditional and socio-cultural normative systems as legal inputs that promote reconciliation, social justice and rebuilding of African communities in disturbed and battered societies is instrumental in achieving sustainable African integration.”240 The conceptual framework of the research is further guided by African feminist theories. African feminist theories expose how the colonial project racialised indigenous nations and left behind the desolation of the racialised body. The argument advanced in this research adopts the scholarly work done by Oyewumi, Lugones, Mendoza and Gqola who all argue gender is intertwined with the colonial racism project.241 The gender dimension resulting from racism in colonial and post-colonial eras cannot be fully understood without unearthing the link between gender and racism. Central to the colonial project was the “sexual exploitation and the objectification of black women by colonial powers coupled with the demonisation of black male sexuality as bestial.”242 These constructions of black sexuality were not historical mistakes but were key to the workings of colonial power. To address the problems of sexual violence, the understanding of colonialism and the nature of the sexual racial wound it created is critical. Furthermore, the recognition of this notion is a central key to unlocking the question of decolonisation.243 Decolonial theory is instrumental to this research as it advances the notion that those perceived as inferior must radically challenge colonising discourse and must make space for alternative imaginations of the world. This is the on-going call that has been heralded by African philosophers in all spheres of African life to address the inherited modern systems operating in Africa today. 240 Mapaure 2011:150. 241 Oyewumi in her book The Invention of Women: Making an African Sense of Western Gender Discourses (1997) states that “We can determine two pivotal and intertwined processes ingrained to European colonisation of Africa. The first and more thoroughly documented of these processes was the racializing and the attendant inferiorization of Africans as the colonized, the natives. The second process … was the inferiorization of females. These processes were inseparable, and both were embedded in the colonial situation.” Oyewumi 1997:151, 153, 152. Maria Lugones argues in response to Quijano that “gender is as central to the colonial power project as race.” Lugones, 2010:748; Mendoza, 2016:102. Gqola asserts that the “Western patterns were violently enforced in ways that were extremely and holistically disruptive, and that turned any deviation from the Western sexual norm into a source of embodied racialised sexualised shame for the colonised.” Gqola 2015:40. 242 Coetzee and Du Toit 2017:1, 8. 243 Coetzee and Du Toit 2017:1, 8. 30 The argument developed in the study is that there is a general lack of appreciation in Zimbabwe‟s current legal system of the importance of pre-colonial African legal philosophy as symbolic and material in how law and justice are lived, understood and theorised.244 This situation presents itself in this manner in Zimbabwe due to historical encounters with colonialism, the colonial institutions of racial segregation and oppression and the post-colonial changes that the country is grappling with.245 This historical epoch of colonialism in Zimbabwe‟s history has significantly informed the background of all the literature on post-independent law and jurisprudence thereby resulting in the replacement of all forms of literature related to pre-colonial African philosophy legal systems and its philosophies on law and justice. 246 This has significantly affected how conflict-related sexual violence is addressed. Western ideologies and methodologies represent the worldviews, perspectives and background of colonialism and thus further perpetuating their interest in their post-colonial Africa.247 This threatens the call for radical thinking in African legal philosophy and conceptual frameworks in disciplines such as law and justice in conflict resolution, decolonisation and black liberation as found in struggles of black consciousness tradition.248 Research into the history of Zimbabwe, which is elaborated on in the motivation section of the study, substantiates the preposition that there was and is “widespread importation and coverage of foreign and mostly white European theories into the legal systems.”249 This western methodological intrusion brought by colonialism inadvertently resulted in other traditions such as African philosophy, critical race theory, cultural studies, black feminism, postcolonial studies, Latin American decoloniality, the Black Arts movement and Afro-Caribbean failing to form the core definitive canon of post-independent African nation.250 It is therefore not surprising that African legal philosophy operational in African countries such as Zimbabwe continues to function under the labels and status propagated by colonialists. Whereby colonialists labelled and relegated pre-colonial 244 Modiri 2010:4. 245 Modiri 2010:4. 246 Modiri 2017:4. 247 Modiri 2017:5. 248 Modiri 2010:4. 249 Modiri 2010:4. 250 Modiri 2017:7. 31 African philosophy as insignificant, a relic of the past that warranted no further significant recognition.251 One can safely assume that from colonial interpretations of pre-colonial African legal systems on matters including conflict-related rape and sexual violence, pre-colonial African legal philosophy and methodology were perceived as incapable of resolving such crimes.252 In the establishment of Western legal systems and institutions by colonial governments through their observation of African legal systems, there was a deliberate move to treat all sexual violence crimes as matters to be solely handled by the new established formal Western court systems.253 It is further contended that to deal with the glaring problem in addressing conflict-related violence in Zimb